## Facts

- Clients (the Kelloses) sued their former attorney (Sawilowsky) for legal malpractice.
- The attorney moved for summary judgment and submitted an affidavit asserting he exercised the skill, prudence, and diligence commonly possessed and exercised by lawyers of ordinary skill and capacity in Georgia.
- The clients opposed summary judgment with an expert attorney affidavit opining that Sawilowsky failed to meet that same Georgia standard.
- The trial court granted summary judgment to the attorney without stating reasons.
- The Court of Appeals affirmed in a split decision, concluding the clients’ expert affidavit did not create a fact issue and faulting it for using an “in the State of Georgia” standard instead of “the legal profession generally.”
- The Supreme Court of Georgia granted review to decide the applicable standard of care in Georgia legal-malpractice actions and whether the expert affidavit was sufficient to defeat summary judgment.

## Issues

1. In a Georgia legal-malpractice action, is the applicable standard of care measured by attorneys practicing in Georgia (a locality/state standard) or by the legal profession generally?
2. Did the clients’ expert affidavit applying the Georgia standard create a genuine issue of material fact sufficient to preclude summary judgment?

## Decision

- The Supreme Court of Georgia reversed the Court of Appeals and the trial court.
- The applicable standard of care in Georgia legal-malpractice actions is the degree of skill, prudence, and diligence commonly possessed and exercised by lawyers of ordinary skill and capacity practicing in Georgia.
- The clients’ expert affidavit applying that Georgia standard was competent and sufficient to create a genuine issue of material fact.
- Because the parties’ expert opinions conflicted on whether the attorney met the standard of care, summary judgment was improper and the case was remanded.

## Legal Principles

- In Georgia, an attorney’s alleged malpractice is judged by the standard of lawyers of ordinary skill and capacity practicing in Georgia, not by an abstract “profession generally” standard.
- Prior statements in intermediate appellate decisions referencing “the legal profession generally” did not establish a binding rule displacing the Georgia-based standard.
- When competent expert affidavits conflict on whether an attorney met the applicable standard of care, the dispute presents a material fact issue for the fact-finder and ordinarily cannot be resolved on summary judgment.

## Conclusion

The court held that Georgia uses a Georgia-practice standard of care for legal-malpractice claims and that a plaintiff’s expert affidavit applying that standard, when it conflicts with the defendant’s affidavit, creates a triable issue that defeats summary judgment.


Kellos v. Sawilowsky, 325 S.E.2d 757 (Ga. 1985)